Norman Understein as Trustee of the Jill S. Parreco Revocable Trust et al v. McKiver

Filing 54

MEMORANDUM OPINION (c/m to Defendant Thomas McKiver and Wendy Bond and Simon Bond 3/30/15 sat). Signed by Judge Deborah K. Chasanow on 3/30/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
NORMAN UNDERSTEIN AS TRUSTEE
OF THE JILL S. PARRECO
REVOCABLE TRUST, et al.

:
:

v.

:

Civil Action No. DKC 14-1452

:
THOMAS McKIVER
:
MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

in

this

confessed judgment case is an unopposed motion for attorney’s
fees and costs filed by Plaintiffs Norman Understein as Trustee
of the Jill S. Parreco Revocable Trust, Norman Understein as
Trustee of the Norman Understein Revocable Trust, and Norman
Understein as Agent for Purchasers (collectively, “Plaintiffs”)
(ECF No. 51).
necessary.

The court now rules, no hearing being deemed

Local

Rule

105.6.

For

the

following

reasons,

Plaintiffs’ motion will be granted, but the attorney’s fees will
be reduced.
I.

Background
The facts and procedural history have been explained in a

prior opinion and need not be repeated.

(See ECF No. 49).

On

December 11, 2014, the court issued a memorandum opinion and
order

adjudicating

multiple

motions

and

entering

judgment

in

favor of Plaintiffs and against Defendant Thomas McKiver in the
amount of $229,481.18 in principal and interest calculated as of
December 31, 2013 plus post judgment interest, less payments
made by Defendant on the judgment.

(See

ECF No. 50 ¶ 5).

Plaintiffs were informed that any motion for attorney’s fees and
costs should be filed within fourteen days in accordance with
Local Rule 109 and Appendix B.

Counsel for Plaintiffs moved for

attorney’s fees and costs on December 24, 2014.

(See ECF No.

51).
II.

Analysis
In

a

diversity

action,

state

law

governs

the

right

to

recover attorney’s fee as well as the method of determining the
amount.

See, e.g., Bistro of Kansas City, Mo., LLC v. Kansas

City Live Block 125 Retail, LLC, Civ. Action No. ELH-10-2726,
2013 WL 6198836, at *5 (D.Md. Nov. 26, 2013); Ranger Const. Co.
v. Prince William County School Board, 605 F.2d 1298, 1301 (4th
Cir. 1979).

The so-called “American Rule” provides “generally

that the prevailing party may not recover its attorney's fees
from the losing party.” Skeens v. Paterno, 60 Md.App. 48, 67,
cert. denied, 301 Md. 639 (1984).

There are a number of well-

recognized exceptions to this rule.

One of them applies when

the parties by contract agree that fees shall be paid by the
loser.

Metalcraft,

Inc.

v.

Pratt,

2

65

Md.

App.

281,

300-01

(1985); Qualified Builders, Inc. v. Equitable Trust Co., 273 Md.
579 (1975).
As

noted

in

the

December

11,

2014

memorandum

opinion,

Paragraph 6(E) of the Demand Promissory and Line of Credit Note
signed by Defendant states that the “Note Holder will have the
right to be paid back [] for all of its costs and expenses in
enforcing this Note to the extent not prohibited by applicable
law.

Those expenses include, for example, reasonable attorneys’

fees, court costs and other collection costs.”
at 3).
this

(ECF No. 27-1,

Paragraph 8 of the Secured Debentures states: “[s]hould

Debenture

be

referred

to

an

attorney

for

collection,

whether or not judgment has been confessed or suit has been
filed, the Borrower shall pay all the holder’s reasonable costs,
fees

and

expenses,

including

resulting from such referral.”
27-3, at 3).

reasonable

attorneys’

fees

(ECF No. 27-2, at 3 & ECF No.

Thus, the issue is whether the fees requested by

Plaintiffs’ attorney are reasonable.
Plaintiffs are represented by Stephen H. Ring (“Mr. Ring”)
of Stephen H. Ring, P.C.

Mr. Ring indicates in his motion

seeking attorney’s fees that “[a] common formula for attorney’s
fees

in

collections

on

promissory

notes

is

amount, which, in this case, would be $40,000.”
2).

15%

of

the

face

(ECF No. 51, at

Mr. Ring requests total attorney’s fees in the amount of

$43,890; fifteen percent of $200,000 (the combined face amount
3

of the debt instruments), however, is $30,000.

In any event,

“Maryland law limits the amount of contractual attorney[’]s fees
to actual fees incurred. . . .
reasonable.”

In addition, the amount must be

SunTrust Bank v. Goldman, 201 Md.App. 390, 398

(2011).
“Courts should use the factors set forth in Rule 1.5 [of
the

Maryland

Lawyers’

Rules

of

Professional

Conduct]

as

the

foundation for analysis of what constitutes a reasonable fee
when the court awards fees based on a contract entered by the
parties

authorizing

an

award

of

fees.”

Monmouth

Meadows

Homeowners Ass’n v. Hamilton, 416 Md. 325, 336-37 (2010).
factors

delineated

in

Rule

1.5

are:

(1)

the

time

and

The
labor

required, the novelty of the questions involved, and the skill
requisite

to

perform

the

legal

service

properly;

(2)

the

likelihood, if apparent to the client, that the acceptance of
the particular employment will preclude other employment by the
lawyer; (3) the fee customarily charged in the locality for
similar legal services; (4) the amount involved and the results
obtained; (5) the time limitations imposed by the client or by
the circumstances; (6) the nature and length of the professional
relationship with the client; (7) the experience, reputation,
and

ability

of

the

lawyer

performing

whether the fee is fixed or contingent.

the

services;

and

(8)

If the court determines

that the requested fees are reasonable, it must then “weigh the
4

fees requested by the results achieved and decide whether an
upward

or

downward

adjustment

in

the

award

is

warranted.”

Hyundai Motor America v. Alley, 183 Md.App. 261, 277 (2008).
The

court

is

required

to

explain

how

affected its decision to award fees.

the

lodestar

factors

Id.

Here, Mr. Ring asks for an award of attorney’s fees in the
amount of $43,680.00.

(See ECF No. 51-1).

He requests an

hourly rate of $280. In support of the requested hourly rate,
Mr. Ring submits his own affidavit stating that he was admitted
to

the

bar

in

1978

Maryland since then.

and

has

continuously

practiced

law

(ECF No. 51, at 1; ECF No. 51-1).

in
He

states that his practice has included commercial litigation and
general civil litigation for the last thirty years.
51-1, at 1).

(ECF No.

The court’s Local Rules Guidelines, which set

forth a range of reasonable rates for legal services based upon
experience and qualifications, suggest that attorneys with Mr.
Ring’s experience generally bill at a rate of $300 to $475 per
hour.

See Local Rules App’x B, at 3(d).

attorney

should

have

submitted

an

Although Plaintiffs’

affidavit

from

an

outside

practitioner attesting to the reasonableness of the hourly rate
for this confessed judgment case, his requested rate of $280 per
hour is reasonable considering his experience.
As for the hours worked, Mr. Ring represents that he spent
a total of 156 hours, although the provided itemization reflects
5

a total of 152.75 billed hours, (see ECF No. 51-1, at 1-10),
which is the figure that will be used as the starting point.
The affidavit from Mr. Ring sets forth in sufficient detail the
nature of the work, along with the time spent on each task from
June 6, 2013 until December 11, 2014.

Mr. Ring explains:

This case entailed more work than a typical
suit on a confessed judgment note for
several reasons: there were three debt
instruments
with
supporting
documents,
involving several parties, that had to be
read together to present the complete claim,
and this required careful reading and a more
complex and detailed statement of facts than
in a typical case; Plaintiff[s] undertook
efforts
prior
to
suit
and
after
the
complaint was filed to negotiate terms with
Defendant and others to avoid the need to
obtain a judgment against Defendant, but
these
efforts
were
in
vain;
Defendant
engaged
counsel
to
resist
the
suit;
Defendant removed the suit from state court
to this Court, and filed several papers
raising far-ranging arguments that required
complete
responses;
Defendant’s
posture
invited the filing of a motion to dismiss
the counterclaim, a motion for summary
judgment, and an amended complaint, all of
which
required
substantial
work.
Defendant’s
sudden
and
unexplained
withdrawal
of
his
filings
should
not
discount the work that was required for
Plaintiff[s] during the contested phases of
the suit.
(ECF No. 51-1, at 2).
Mr. Ring is correct that the procedural posture of this
case was somewhat unusual in that Defendant eventually withdrew
four

filings,

including:

(1)

the

6

motion

to

vacate

confessed

judgment; (2) the counterclaim; (3) opposition to Plaintiffs’
motion for summary judgment; and (4) the third-party complaint.
Mr. Ring will be credited for the time spent having to prepare
responses to the various filings by Defendant.
filing

the

Plaintiffs

motion
had

for

already

summary

opposed

judgment,

Defendant’s

The necessity of
however,
motion

to

after
vacate

confessed judgment and before any discovery had taken place, is
unclear.

Based on the itemized records Mr. Ring provides, he

expended approximately 22 hours on work related to the motion
for summary judgment.

(See ECF No. 51-2, at 7-8).

will be reduced by 10 hours.

The remaining hours appear to be

reasonable and will be awarded.
142.75

hours

for

work

This figure

Mr. Ring will be credited with

performed

at

an

hourly

rate

of

$280

(resulting in $39,970).
Having established that $39,970 for 142.75 hours of work is
reasonable, the court must consider whether an adjustment of the
award is warranted based upon the outcome of the case.

Mr. Ring

achieved a favorable result for his clients having had judgment
entered in their favor.
largely

appears

to

The work underlying the requested fees

have

been

necessary

efficient manner without duplication.
attorney on the case.

and

performed

in

an

Mr. Ring was the only

Accordingly, Plaintiff is entitled to

$39,970 in attorney’s fees.

7

Plaintiff additionally seeks reimbursement of costs in the
amount of $210, consisting of a $135 filing fee in the Circuit
Court for Montgomery County and a $75 service of process fee in
Connecticut.

(ECF No. 51-2, at 10).

Fed.R.Civ.P. 54(d)(1)

provides that “[u]nless a general statute, these rules, or a
court order provides otherwise, costs – other than attorney’s
fees – should be allowed to the prevailing party.”

Taxation of

costs is limited, however, to items enumerated in 28 U.S.C. §
1920, including, as relevant here, “[f]ees of the clerk and
marshal.”

28

U.S.C.

§

1920(1).

The

filing

associated with service of process are taxable.

fee

and

fee

Accordingly,

costs will be taxed in favor of Plaintiffs in the amount of
$210.
III. Conclusion
The motion for attorney’s fees and costs will be granted,
but the attorney’s fees will be reduced.

A separate order will

follow.
/s/
DEBORAH K. CHASANOW
United States District Judge

8